[BC] MS objection to IBOC

[Paul Christensen]

> We are going to see a huge pissing contest now. iBiquity will fight to the
> death for this one.

Arguably, this is why open systems architectures as developed by consortiums 
rarely (but not always) encounter intellectual property rights issues.

If there really is a valid patent claim concerning iBiquity's CODEC(s) MS 
could withhold the filing long enough for HD Radio to mature while it tries 
to reverse-engineer the CODEC technology and prepare their evidentiary 
findings.  Then, just when iBiquity and group/station owners start feeling 
warm and fuzzy, in comes the claim and guess what?  Under current U.S. 
patent law, users and licensees of the patented technology become defendants 
in the suit.  Think about what this means if you are one of the large U.S. 
broadcasting groups who is embracing their technology.

Part of my work involves expert witness testimony in the broadband/CATV 
industry.  I currently work under contract for two New York City I.P. firms. 
Typically, by the time the I.P. firm files its claim on behalf of the 
plaintiff/patent holder, the users and sellers of the technology have made 
large profits -- most of which is reachable to the plaintiff.

I have not seen a recent contract involving iBiquity's technology but I 
suspect they already indemnify the licensee from I.P. claims.  And no doubt 
the big U.S. broadcasting groups have made sure they're covered.  But before 
signing-up for the purchase or licensing of *any* new technology, consult 
with your general counsel to compel the manufacturer or licensor to include 
language which expressly indemnifies, defends and holds you as the 
purchaser, and/or licensee absolutely harmless in the event your 
organization is named as a defendant.

Generally, large corporations and municipalities require that riskier 
parties post a bond or place a liability amount held in escrow.  Otherwise, 
if the seller or licensor files for federal bankruptcy protection after the 
suit commences, this could leave the licensing organization as the only 
party with something to go after.

-Paul


====================================
Paul Christensen, CPBE
LAW OFFICE OF PAUL B. CHRISTENSEN, P.A.
3749 Southern Hills,  Jacksonville, Florida 32225
Office: (904) 379-7802    Facsimile: (904) 212-0050
pchristensen at ieee.org